Date: 20110111
Docket: IMM-5979-09
Citation: 2011 FC 19
Ottawa, Ontario, January 11,
2011
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
VINOD
KUMAR RAINA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Vinod Kumar Raina (the “Applicant”) seeks judicial review of the decision of
the Immigration and Refugee Board, Refugee Protection Division (the “Board”),
dated November 4, 2009. In its decision, the Board found that the Minister of
Citizenship and Immigration (the “Respondent”) had discharged his burden to
show that the Applicant was excluded from protection pursuant to the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), on the basis of Article
1F(b) of the United Nations Convention Relating to the Status of Refugees,
July 28, 1951,
Can. T.S. 1969 No. 6 (the “Convention”), that is for being
convicted of a serious non-political crime.
[2]
The
Applicant is a citizen of India. He came to Canada in October 2006 and claimed
protection on the basis of harassment, threats, and torture by police in the
State of Jammu
and Kashmir. In
his Personal Information Form (“PIF”), the Applicant disclosed that he had been
convicted in New
Zealand in December
2001 of the offence of indecent assault. He was sentenced to serve a term of
imprisonment of 2 years and 6 months. The Applicant was also charged with the
more serious offence of sexual violence for the same incident. He was acquitted
of that charge.
[3]
The
Applicant did not appeal this conviction but maintained at the hearing before
the Board that he had been unjustly convicted of indecent assault because he
had kissed the 14 year old girl who was related to his wife.
[4]
The
Minister of Citizenship and Immigration (the “Respondent”) argued before
the Board that indecent assault is a serious non-political crime equivalent
to sexual interference. Reference was made to section 151 of the Criminal
Code, R.S.C. 1985, c. C-46 which provides as follows:
Sexual
interference
151.
Every person who, for a sexual purpose, touches, directly or indirectly, with
a part of the body or with an object, any part of the body of a person under
the age of 16 years
(a)
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding ten years and to a minimum punishment of imprisonment for a term of
forty-five days; or
(b)
is guilty of an offence punishable on summary conviction and liable to
imprisonment for a term not exceeding eighteen months and to a minimum
punishment of imprisonment for a term of fourteen days.
|
Contacts
sexuels
151.
Toute personne qui, à des fins d’ordre sexuel, touche directement ou
indirectement, avec une partie de son corps ou avec un objet, une partie du
corps d’un enfant âgé de moins de seize ans est coupable :
a)
soit d’un acte criminel passible d’un emprisonnement maximal de dix ans, la
peine minimale étant de quarante-cinq jours;
b)
soit d’une infraction punissable sur déclaration de culpabilité par procédure
sommaire et passible d’un emprisonnement maximal de dix-huit mois, la peine
minimale étant de quatorze jours.
|
[5]
In
its decision, the
Board found that the offence of which the Applicant was convicted falls into
the category of child molestation. If convicted of such an offence in Canada, the Board
stated without explanation that the Applicant could be punished by a maximum
term of imprisonment of 10 years. The Board noted that this creates a
presumption that there are serious grounds to believe that the Applicant committed
a serious non-political crime outside of Canada.
[6]
The
Board found that the Applicant had not rebutted the presumption and rejected
the Applicant’s argument that the elements of the offence of indecent assault
in New
Zealand
are not equivalent to the elements of s. 151 of the Criminal Code. The
Board does not give its reasons for rejecting that argument.
[7]
The
failure to properly apply the test for determining equivalency of criminal
offences for the purpose of Article 1F(b) of the Convention can constitute a
reviewable error; see Iliev v. Canada (Minister of
Citizenship & Immigration), 2005 FC 395.
[8]
In
Hill v. Canada (Minister of Employment & Immigration) (1987), 73
N.R. 315, the Federal Court of Appeal set out the following tests for
determining the equivalency of offences:
It seems to me that because of the
presence of the words "would constitute an offence ... in Canada",
the equivalency can be determined in three ways: - first, by a comparison of
the precise wording in each statute both through documents and, if available,
through the evidence of an expert or experts in the foreign law and determining
therefrom the essential ingredients of the respective offences. Two, by
examining the evidence adduced before the adjudicator, both oral and documentary,
to ascertain whether or not that evidence was sufficient to establish that the
essential ingredients of the offence in Canada had been proven in the foreign
proceedings, whether precisely described in the initiating documents or in the
statutory provisions in the same words or not. Third, by a combination of one
and two.
[9]
In
my opinion, the Board erred by concluding that the elements of indecent assault
in New Zealand are equivalent to the elements of s. 151 of the Criminal Code
without applying one of the three tests for determining equivalency.
[10]
The
Board considered the more serious charge of sexual violence to be relevant as
to whether the conviction for indecent assault constituted a serious
non-political crime. The Applicant argues that the Board erred in doing so.
[11]
I
agree. In my opinion, the fact that the Applicant was charged and acquitted of
a more serious offence cannot be used to determine that a lesser charge of
which the Applicant was convicted is a serious non-political crime. In similar
contexts, this Court has held that references to outstanding criminal charges
are inadmissible and violate the Canadian Charter of Rights and Freedoms,
The Constitution Act, 1982, being Schedule B to the Canada Act 1982
(U.K.), 1982, c. 11; see Bertold v. Canada (Minister of Citizenship and
Immigration) (1999), 175 F.T.R. 195.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed and the decision is set aside and
the matter is remitted to a different panel of the Board for re-determination.
There is no question for certification arising.
“E.
Heneghan”